[37] HARRY T. EDWARDS, Circuit Judge, dissenting in part and concurring in the judgment:

In this case, Walter L. Nixon, Jr., a former United States District Judge, challenges the constitutionality of his conviction by the United States Senate on two articles of impeachment and his subsequent removal from the bench. Nixon contends that the Senate violated its express constitutional duty to "try" his impeachment by delegating most of the actual trial work to a special committee of 12 senators. The District Court found that Nixon had presented a significant constitutional question but that it was nonjusticiable under the political question doctrine. See Nixon v. United States, 744 F.Supp. 9, 13 (D.D.C. 1990).

I find that Nixon's claim is justiciable. Because Nixon alleges that the Senate violated an express textual limitation on its constitutional authority — that is, convicted him on articles of impeachment without first "try[ing]" him within the constitutional meaning of that term — the courts are not only competent, but duty-bound, to interpret the text and decide the constitutional question. See Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). Reaching the merits, however, I conclude that the Senate's use of a special committee to hear witnesses and gather evidence did not deprive Nixon of any constitutionally protected right. I would therefore affirm the judgment of the District Court, albeit on different grounds than those enunciated by the trial court or by the majority today.

I. BACKGROUND

In early 1984, the Federal Bureau of Investigation ("FBI"), acting on tips, commenced an investigation of Walter L. Nixon, Jr., who was then Chief Judge of the U.S. District Court for the Southern District of Mississippi. The FBI was given reason to believe that, in consideration of certain financial inducements, Nixon had communicated with a local prosecutor on behalf of a friend's son who was facing possible drug charges. Following the FBI investigation, the case was presented to a grand jury, before whom Nixon testified. In his testimony to the grand jury, Nixon falsely denied ever having spoken with the local prosecutor about the drug prosecution. The grand jury then returned an indictment charging Nixon with one count of bribery and three counts of perjury. In 1986, although acquitted on the underlying bribery charge, Nixon was convicted of perjury based on his grand jury testimony, and his conviction was subsequently affirmed. See United States v. Nixon, 816 F.2d 1022 (5th Cir. 1987), cert. denied, 484 U.S. 1026, 108 S.Ct. 749, 98 L.Ed.2d 762 (1988).

In May 1989, the House of Representatives voted to impeach Nixon on three articles relating to his perjury. See 135 CONG. REC. H1811 (daily ed. May 10, 1989). The first two articles charged Nixon with giving false testimony to the grand jury and the last charged him with bringing disrepute to the federal judiciary by way of his actions. See id. at H1802-03.

When these articles came before the Senate for trial, the Senate voted to empanel a special committee of 12 senators to hear witnesses and gather evidence. See S.Res. 128, 101st Cong., 1st Sess., 135 CONG. REC. S5199 (daily ed. May 11, 1989). This committee was established pursuant to Senate Impeachment Rule XI, an internal rule adopted in 1935 and first invoked in 1986 during the impeachment trial of former U.S. District Judge Harry Claiborne. Under Rule XI, the Senate may elect to delegate certain evidence-gathering responsibilities associated with an impeachment trial to a special 12-member committee, in lieu of conducting a full evidentiary hearing on the Senate floor. Although the rule does not prohibit it, in practice the committee has not been empowered to pass judgment on contested issues of fact or make any recommendations concerning the resolution of the impeachment charges. See S.Res. 128, supra, § 5. The committee is, however, fully authorized to hear witnesses, permit cross-examination and compile a record upon which the full Senate may act.

Under established procedures, all members of the Senate are kept fully apprised of the committee's proceedings. The proceedings are broadcast live to all Senate offices and are also recorded on videotape which is made available to all senators. The committee also prepares a report summarizing both the undisputed facts of the case and the evidence relating to those which are contested. This report, along with a transcript of the committee's proceedings, is then passed along to the full Senate. Rule XI does not preclude the Senate from calling witnesses before the full body or from conducting further factual inquiries on the Senate floor. Prior to a final vote, the parties are permitted to make arguments before the full assembly.

Nixon protested the use of an evidentiary committee in his case and twice unsuccessfully asked the Senate to conduct all evidentiary proceedings on the Senate floor. The committee appointed to inquire into Nixon's case conducted four days of hearings in September 1989 and heard from 10 witnesses, including five defense witnesses and Nixon himself. See REPORT OF THE IMPEACHMENT TRIAL COMMITTEE ON THE ARTICLES AGAINST JUDGE WALTER L. NIXON, JR., S.REP. No. 164, 101st Cong., 1st Sess. 4 (1989). On October 16, 1989, the committee submitted its report to the full Senate, see id., and the parties submitted final briefs shortly thereafter.

For three consecutive days, beginning November 1, 1989, the full Senate considered the question of Nixon's impeachment. On November 1, Nixon and the House impeachment managers were each allowed 90 minutes to present closing arguments on the Senate floor. See 135 CONG. REC. S14,494 (daily ed. Nov. 1, 1989). Nixon himself used some of that time to offer a personal appeal to the senators. See id. at S14,502-04. Following these arguments, the senators posed a number of written questions to the parties. See id. at S14,513-16. On November 2, the full Senate deliberated on Nixon's guilt for six hours in closed session. On the final day, the Senate voted by the necessary two-thirds majority to convict Nixon on two of the three articles of impeachment.

Nixon now challenges the constitutionality of the procedure used by the Senate in considering his impeachment. His argument is that the Constitution obligates "the Senate" to "try" impeachments and that this language entitles him to a full evidentiary hearing on the floor of the Senate. The Senate's use of a committee to gather evidence and hear witnesses, Nixon argues, fundamentally prejudiced his case and stripped the Senate's later deliberations of the judicial character required by the Constitution. In particular, Nixon contends that, although issues of credibility were central to the Senate's ultimate disposition of his case, only the 12 senators who served on the committee actually heard the witnesses testify in person. As evidence of the prejudice he suffered, Nixon offers an analysis of the final vote in his case which shows that senators who did not serve on the committee (and thus did not hear the witness testimony first-hand) were more likely to vote to convict than those senators who sat on the committee.

Nixon first brought this challenge before the District Court in June 1989, when he intervened in a law suit brought by then-Judge Alcee Hastings, who was also facing impeachment proceedings. In that case, the District Court held Nixon's claim to be a nonjusticiable political question; this court affirmed the trial court's dismissal, but on the grounds that the claims were then premature in light of the fact that neither plaintiff had yet been convicted by the Senate. See Hastings v. United States Senate, 716 F.Supp. 38, 40 (D.D.C.), aff'd mem. on other grounds, 887 F.2d 332 (D.C. Cir. 1989).

Following the Senate's vote, Nixon renewed his constitutional challenge, seeking a declaration that his conviction by the Senate and subsequent removal were unconstitutional. In reply, the Government mounted a two-prong attack on the court's authority to hear Nixon's challenge. First, the Government renewed its insistence that the claim was a nonjusticiable political question. Second, it asserted that, even if the claim were justiciable, it could be heard only in the United States Claims Court, the exclusive forum in which the United States has waived its sovereign immunity to suits for large money damages. Because a finding in Nixon's favor on the merits might entitle him to back pay in excess of $10,000, the Government reasoned, Nixon's suit was essentially one for money damages over which the Claims Court would have exclusive jurisdiction.

The District Court held that it had proper subject-matter jurisdiction over Nixon's suit but concluded, once again, that his claim was nonjusticiable under the political question doctrine. See Nixon v. United States, 744 F.Supp. 9, 13-14 (D.D.C. 1990). In the District Court's view, the Senate's use of an evidentiary committee simply did not "result in the dimension of departure from the Constitution's textual commitment to the Senate of the 'sole Power to try all Impeachments' as to make this controversy justiciable and the claim meritorious." Id. at 14.

Nixon now appeals the District Court's judgment.

II. ANALYSIS

A. Subject-Matter Jurisdiction

Before reaching the more difficult issues presented by Nixon's case, it is necessary to dispose of a claim by the appellees that the District Court lacked subject-matter jurisdiction. The appellees argue that Nixon's suit is essentially one for money damages in the form of back pay. See Brief for Appellees and Amicus Curiae United States Senate ("Appellees Br.") at 37. Because that back pay would now amount to more than $10,000, the appellees argue, exclusive jurisdiction lies under the Tucker Act in the Claims Court, the only forum in which the United States has waived its sovereign immunity to such suits. See 28 U.S.C. § 1491 (1988). The appellees are mistaken.

Nixon relies upon the waiver of sovereign immunity found in the Administrative Procedure Act. That Act waives sovereign immunity for actions "seeking relief other than money damages" that allege illegal action by a federal agency or officer. See 5 U.S.C. § 702 (1988). Nixon's suit clearly alleges illegal action by a federal agency or officer, namely, actions taken by federal officials to effectuate his removal from judicial office following his impeachment and assertedly unconstitutional conviction by the Senate.

Nixon's suit also qualifies as one "seeking relief other than money damages." Nixon seeks only a declaration of the constitutional infirmity of his removal and of his entitlement to the pay and benefits of his former office; Nixon does not seek a judgment ordering the payment of any sum of money. Thus, "insofar as the complaint sought [only] declaratory . . . relief, it was certainly not an action for money damages." Bowen v. Massachusetts, 487 U.S. 879, 893, 108 S.Ct. 2722, 2731, 101 L.Ed.2d 749 (1988); see also Dronenburg v. Zech, 741 F.2d 1388, 1389-90 (D.C. Cir. 1984); Schnapper v. Foley, 667 F.2d 102, 107-08 (D.C. Cir. 1981), cert. denied, 455 U.S. 948, 102 S.Ct. 1448, 71 L.Ed.2d 661 (1982). Even if Nixon's suit might later give rise to some claim to monetary compensation, this fact would not render his instant suit one for "money damages." As this court has previously explained,

even if a declaration by the district court could later be used as the basis for monetary relief, that possibility does not deprive the district court of authority to grant the requested relief. Declaratory relief is improper only if the plaintiffs' action is a mere pretext to avoid the exclusive jurisdiction of the Claims Court.

Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1533 (D.C. Cir. 1984) ( en banc) (footnotes omitted), vacated on other grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985); see also Laguna Hermosa Corp. v. Martin, 643 F.2d 1376, 1379 (9th Cir. 1981). There is surely no basis on the record in this case for us to conclude that Nixon framed his complaint as one for declaratory relief merely as a pretext to avoid the Claims Court.

The appellees are correct in asserting that Nixon may not rely on the waiver of sovereign immunity contained in the Administrative Procedure Act if he could obtain adequate relief in the Claims Court under the Tucker Act. See 5 U.S.C. §§ 702, 704 (1988); see also 14 C. WRIGHT, A. MILLER E. COOPER, FEDERAL PRACTICE AND PROCEDURE § 3659 (2d ed. 1985 Supp. 1991). But relief in that forum is limited largely to the awarding of monetary compensation. See 28 U.S.C. § 1491(a)(1) (2) (1988); see also Bowen v. Massachusetts, 487 U.S. at 914-15, 108 S.Ct. at 2742-43 (Scalia, J., dissenting); McEniry v. United States, 7 Cl.Ct. 622, 625 ("It is clear that a plaintiff's primary claim must be one for monetary relief before this court can assert jurisdiction over the claim.") (emphasis added), aff'd mem., 785 F.2d 323 (Fed. Cir. 1985). And, in this case, I am in total disagreement with the appellees' suggestion that a money judgment for back pay and benefits is all that Nixon seeks or all that he needs to cure his asserted constitutional injury. The injury Nixon alleges as a result of his removal goes far beyond the loss of his salary. It includes not only removal from the federal bench, but permanent disqualification from holding Government Office. See U.S. CONST. art. I, § 3, cl. 7 (officers removed upon impeachment suffer "disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States"). Given the nature of Nixon's injury, it appears obvious that "the doubtful and limited relief available in the Claims Court is not an adequate substitute for review in the District Court," Bowen v. Massachusetts, 487 U.S. at 901, 108 S.Ct. at 2736; see also id. at 904, 108 S.Ct. at 2737, and that Nixon therefore properly relied on the waiver of sovereign immunity found in 5 U.S.C. § 702.

Thus, I find that the District Court correctly asserted subject-matter jurisdiction over Nixon's claim and now turn to the appellees' invocation of the political question doctrine.

B. Justiciability

The District Court found that, "[d]espite textual and historical indicators that the word 'try' carries with it some duty for Senators to sit as judge and jury, . . . plaintiff has not established the kind of clear violation of a specific constitutional requirement which would trigger judicial authority to review a solemn and serious Senate action." Nixon, 744 F.Supp. at 13. The District Court thus accepted the appellees' argument that, "[e]ven though plaintiff's challenge to the constitutionality of Rule XI raises a serious question," the matter cannot be considered on the merits because Nixon has raised a nonjusticiable "political question." Id. I disagree.

It is, of course, not enough to avoid judicial review for the Government to point out that this is a "political" case, in the sense that the judiciary is asked to declare invalid action by a coordinate branch of Government in performing one of its core "political" functions. As the Supreme Court has reminded us time and again, "the presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine," INS v. Chadha, 462 U.S. 919, 942-43, 103 S.Ct. 2764, 2779-80, 77 L.Ed.2d 317 (1983), and "courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority," Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 710, 7 L.Ed.2d 663 (1962). Rather, what is required is a more "discriminating inquiry into the precise facts and posture of the particular case," id., in an effort to determine whether the courts are genuinely incompetent to decide the matter.

Under the Supreme Court's landmark decision in Baker v. Carr, the political question doctrine comes into play only when,

[p]rominent on the surface of a case . . . is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. "Unless one of these formulations is inextricable from the case at bar," the Court concluded, "there should be no dismissal for nonjusticiability on the ground of a political question's presence." Id. Thus, the political question doctrine is narrowly confined; and, as history has shown, it is a rarely invoked limitation on judicial authority.

The appellees argue that Nixon's claim should be dismissed as nonjusticiable because of (i) a "textually demonstrable commitment" of impeachment questions to a coordinate branch, and (ii) the impossibility of deciding the case without expressing disrespect for the Senate. See Appellees Br. at 25-26. I reject both contentions.

1. "A Textually Demonstrable Commitment"

Article I, § 3, cl. 6, of the Constitution provides:

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

The District Court held that this provision is a "textually demonstrable commitment" of impeachment questions to a coordinate branch of Government. Thus, because the Constitution expressly delegates to the Senate "the sole Power" to try impeachments, and because the Senate gave Nixon some "semblance of a trial," Nixon, 744 F.Supp. at 14, the trial court ruled that it was without authority to dictate more precisely "the type of trial to be accorded," id. (emphasis in original); accord Hastings, 716 F.Supp. at 40-41.

This sweeping view of nonjusticiability cannot be squared, however, with the Supreme Court's decisions in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969), and other more recent cases giving definition to the political question doctrine. A careful review of those cases is essential to a disposition of Nixon's claim.

Where the Constitution expressly assigns absolute discretion in a matter to the legislative or executive branch, the courts have no role to play in reviewing the exercise of that discretion. But, as the Court made clear in Baker v. Carr, not every constitutional assignment of power constitutes a "textually demonstrable constitutional commitment" within the contemplation of the political question doctrine. There are many broad delegations of authority to coordinate branches of Government that do not result in nonjusticiable questions merely by virtue of the breadth of the assigned authority. For example, the Constitution assigns to Congress the "Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes," U.S. CONST. art. I, § 8, cl. 3, and yet no one reasonably would suggest that it is beyond the authority of the courts to review congressional enactments regulating interstate commerce. Cf. County of Oneida, N.Y. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226, 249, 105 S.Ct. 1245, 1259, 84 L.Ed.2d 169 (1985) ("Congress' plenary power in Indian affairs under Art. I, § 8, cl. 3, does not mean that litigation involving such matters necessarily entails nonjusticiable political questions"). Rather, what makes a "textually demonstrable commitment" is not merely a textual assignment of power, but a textual assignment of absolute discretion in a particular matter to a coordinate branch.

The distinction at times may seem elusive, but it is usefully illuminated by comparing two lines of cases interpreting the same clause of the Constitution. Article I provides that "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members." U.S. CONST. art. I, § 5, cl. 1. Because this clause unequivocally states that each house of Congress — rather than the courts — shall be "the Judge" of these matters, it has been held that courts may not consider a claim that the House or Senate seated the wrong candidate following a contested congressional election. There being no dispute in these cases that the Senate or House has in fact "judged" the election returns, but only that it got the factual result wrong, there can be no dispute that the final word on the counting of ballots has been assigned outside the judiciary. See Roudebush v. Hartke, 405 U.S. 15, 19, 92 S.Ct. 804, 807-08, 31 L.Ed.2d 1 (1972) (dicta); Webster v. Doe, 486 U.S. 592, 612, 108 S.Ct. 2047, 2058, 100 L.Ed.2d 632 (1988) (Scalia, J., dissenting); Morgan v. United States, 801 F.2d 445, 447 (D.C. Cir. 1986) (Scalia, J.), cert. denied, 480 U.S. 911, 107 S.Ct. 1359, 94 L.Ed.2d 529 (1987); McIntyre v. Fallahay, 766 F.2d 1078, 1081 (7th Cir. 1985). If courts were permitted to review a congressional decision to seat a particular candidate by recounting the ballots or scrutinizing other findings of fact, the judiciary, and not the Congress, would in the last analysis be "the Judge" of election returns.

The Supreme Court considered a somewhat different claim grounded in the same clause, however, in Powell v. McCormack, and there found the issue justiciable. In that case, Congressman Adam Clayton Powell, Jr., challenged a House of Representatives' decision barring Powell from taking his seat. The House, citing alleged financial misconduct, contended that it had "judged" Powell unqualified to serve as a member. Powell argued that "Qualifications" under article I, section 5, must be construed to include only the standing requirements expressly listed in the Constitution itself ( i.e., age, citizenship and residency), while the House insisted that the Constitution assigned nonreviewable discretion to the Congress to define and judge those "Qualifications" for itself.

The Supreme Court held that Powell's challenge did not present a nonjusticiable political question. The Court began its analysis by observing the paradox that an assessment of whether a constitutional claim is reviewable unavoidably requires that judges initially review the relevant constitutional language and give it content. "In order to determine whether there has been a textual commitment to a co-ordinate department of the Government," the Court wrote, "we must interpret the Constitution." 395 U.S. at 519, 89 S.Ct. at 1963. Accordingly, the Court undertook an extensive review of the text and historical practice concerning legislative qualification and exclusions and concluded that the framers intended the term "Qualifications" to include only those standing requirements listed in article I, section 2, of the Constitution:

In short, both the intention of the Framers, to the extent it can be determined, and an examination of the basic principles of our democratic system persuade us that the Constitution does not vest in the Congress a discretionary power to deny membership by a majority vote.

Id. at 548, 89 S.Ct. at 1978. Consequently, the Court held that Congress' textual authority to be "the Judge" of the "Qualifications" of its members did not empower Congress to be "the Judge" of what the Constitution means by "Qualifications"; that task remained with the courts. Rather, "Art. I, § 5, is at most a 'textually demonstrable commitment' to Congress to judge only the qualifications expressly set forth in the Constitution." Id. While challenges to Congress' factual rulings on age, citizenship and residency might be nonjusticiable, the Court held, a claim that Congress had exceeded the textual bounds of its authority by excluding a member on grounds other than his constitutional "Qualifications" is amenable to judicial review. See id. at 520-22 n. 42, 89 S.Ct. at 1963-64 n. 42.

It is clear from the Supreme Court's rulings in Powell and Roudebush, then, that while the courts may well be barred from second-guessing Congress' fact-finding and policy judgments within the zones of discretion assigned it by the Constitution, the courts may review claims that Congress has exceeded an explicit textual limitation on its powers.

The justiciability of Nixon's claim is directly controlled by Powell. I recognize that a challenge to the factual findings underlying the Senate's conviction, e.g., a claim that the party convicted had not actually committed the misconduct of which he was accused, would almost certainly be nonjusticiable — just as Powell suggested that a fact-based challenge to the exclusion of a member for failing to satisfy the standing requirements of age, citizenship or residency might be, see 395 U.S. at 521 n. 42, 89 S.Ct. at 1963 n. 42, and as Roudebush and Morgan suggested that a claim that the Senate or House had misjudged the returns in a close election would be. A claim, however, that the Senate exceeded the textual bounds of its authority by convicting a judge on articles of impeachment without first "try[ing]" him within the constitutional meaning of that term — as Nixon claims in this case — is justiciable. Unlike the plaintiff in Morgan, who effectively asked this court to supplant the House as "the Judge" of an election, Nixon does not ask us to supplant the Senate as the "tr[ier]" of his impeachment; he asks only that we review the Senate's conduct to ensure that it in fact tried him as required by the Constitution. It is the courts' task to interpret and give content to the word "try," just as it was the Court's job in Powell to give meaning to the word "Qualifications."

The District Court also suggested that judicial review of Nixon's claim might be foreclosed by the Constitution's textually demonstrable assignment to the Senate of the power to "determine the Rules of its Proceedings." U.S. CONST. art. I, § 5, cl. 2; see Nixon, 744 F.Supp. at 13, 14. But this assignment of power, like the assignment of power to Congress to regulate interstate commerce or to provide for the general welfare, may be exercised only within the constraints of other constitutional provisions. The Senate could not, for example, constitutionally pass a "rule" allowing conviction and removal of impeached officers by a majority vote, and the fact that the Senate's action had been taken pursuant to its "rulemaking" authority would provide no shield against judicial invalidation. As this court has previously explained, "Art. I[, § 5, cl. 2,] simply means that neither we nor the Executive Branch may tell Congress what rules it must adopt. Article I does not alter our judicial responsibility to say what rules Congress may not adopt because of constitutional infirmity." Vander Jagt v. O'Neill, 699 F.2d 1166, 1173 (D.C. Cir.), cert. denied, 464 U.S. 823, 104 S.Ct. 91, 78 L.Ed.2d 98 (1983). Here, Nixon alleges that the Senate, by way of Rule XI, has violated an explicit textual limitation on its powers by removing him without first "try[ing]" him. We may well disagree with Nixon on the merits, but that disagreement is not grounds for finding his claim nonjusticiable.

The District Court in this case went astray by taking essentially the opposite approach — first finding that the Senate had not committed a clear constitutional violation and then finding that its action was somehow consequently beyond judicial review. See Nixon, 744 F.Supp. at 13 ("[P]laintiff has not established the kind of clear violation of a specific constitutional requirement which would trigger judicial authority to review a solemn and serious Senate action."). It appears that, for the District Court, "[t]he issue on justiciability turns ultimately" upon the merits of Nixon's claim, i.e., "on the narrow question of whether the Senate's specific denial of this plaintiff's motions for leave to take testimony before the open Senate denied him the kind of trial clearly guaranteed to him by the Constitution." Id. By this approach, however, the finding of nonjusticiability becomes largely a shorthand label for the court's ultimate conclusion that there has been no constitutional violation, or, to put it more precisely, that the governmental defendant did not exceed the bounds of the discretionary authority assigned it by the Constitution. See generally Henkin, supra note 6, at 601, 605-06. It is misleading, however, to suggest in such an instance that the court has declined to engage in judicial review. If the political question doctrine is to have any integrity as a constraint upon judicial review, its invocation must arise from an analysis of the Constitution that stands apart from any conclusion on the merits of the particular claim presented.

Consequently, adhering to the Supreme Court's guidance in Powell, I reject the argument that Nixon's challenge is non-reviewable because of a "textually demonstrable commitment" of the issue to a coordinate branch.

2. Disrespect to the Senate

Alternatively, the appellees argue that Nixon's claim should be held nonjusticiable because of "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government." Baker, 369 U.S. at 217, 82 S.Ct. at 710; see Appellees Br. at 28-29. Judicial review of the Senate's decision to employ a committee in trying impeachments would be particularly insulting, the Government argues, because the record reveals that the Senate gave thoughtful and careful consideration to the constitutionality of its decision. See Appellees Br. at 28, 49-50.

This claim, too, however, must be rejected in light of the Supreme Court's holdings in Powell and subsequent cases. In Powell, the Court rejected the notion that its ruling invalidating the House of Representatives' exclusion of Powell would express disrespect for the House. The Court stated summarily:

Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts' avoiding their constitutional responsibility.

Powell, 395 U.S. at 549, 89 S.Ct. at 1978 (footnote omitted); accord United States v. Munoz-Flores, ___ U.S. ___, 110 S.Ct. 1964, 1968-69, 109 L.Ed.2d 384 (1990); Goldwater v. Carter, 444 U.S. 996, 1001, 100 S.Ct. 533, 536, 62 L.Ed.2d 428 (1979) (Powell, J., concurring in the judgment) ("Interpretation of the Constitution does not imply lack of respect for a coordinate branch."). If the Court may respectfully inform the House that it has unconstitutionally excluded one of its own members, it surely may respectfully inform the Senate that it has unconstitutionally convicted a judge without "try[ing]" him in an impeachment. Indeed, were we to accept the Government's view of what constitutes "disrespect" to a coordinate branch, " every judicial resolution of a constitutional challenge to a congressional [action] . . . would be impermissible." Munoz-Flores, 110 S.Ct. at 1968 (emphasis in original).

The fact that the Senate vigorously debated the constitutionality of its actions likewise fails to render Nixon's claim nonjusticiable. The Supreme Court pointedly rejected this suggestion only last year:

Congress often explicitly considers whether bills violate constitutional provisions. Because Congress is bound by the Constitution, its enactment of any law is predicated at least implicitly on a judgment that the law is constitutional. . . . Yet such congressional consideration of constitutional questions does not foreclose subsequent judicial scrutiny of the laws' constitutionality. On the contrary, this Court has the duty to review the constitutionality of congressional enactments.

Id. at 1968-69 (citations omitted).

In light of these admonitions from the Supreme Court, we cannot agree with the appellees that judicial review of Nixon's claim is foreclosed because it might express disrespect for the Senate.

3. Conclusion on Justiciability

This court has previously acknowledged that "[t]he political question doctrine is a tempting refuge from the adjudication of difficult constitutional claims." Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1514 (D.C. Cir. 1984) ( en banc), vacated on other grounds, 471 U.S. 1113, 105 S.Ct. 2353, 86 L.Ed.2d 255 (1985). And, yet, cognizant that "courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority," Baker v. Carr, 369 U.S. at 217, 82 S.Ct. at 710, and that the "shifting contours and uncertain underpinnings [of the political question doctrine] make it susceptible to indiscriminate and overbroad application to claims properly before the federal courts," Ramirez de Arellano, 745 F.2d at 1514, we have been diligent in resisting the temptation.

The narrow scope of the political question doctrine is evident from the Supreme Court's treatment of the issue in recent cases. In the nearly 30 years since Baker v. Carr, the Supreme Court has turned aside assertions of nonjusticiability under the doctrine in more than a dozen cases. In only one, Gilligan v. Morgan, 413 U.S. 1, 93 S.Ct. 2440, 37 L.Ed.2d 407 (1973), has the Court held that a case presented a nonjusticiable political question, and it is plain that Gilligan's holding does not extend far beyond the unique facts of that case.

It is against this backdrop that we must consider Nixon's case. Because Nixon has alleged that the Senate exceeded an explicit textual limitation on its authority by convicting him without first "try[ing]" him in the sense required by the Constitution, I conclude that the courts are competent to hear his claim. At oral argument, counsel for the Government implicitly conceded this court's authority to review Nixon's claim by agreeing that this court could review a claim that the Senate had unconstitutionally delegated its authority to try impeachments to a randomly chosen group of schoolchildren, reserving to itself only the task of formally approving whatever result that group recommended. In both this case and that hypothetical, however, the basis for the constitutional claim is identical: that the Senate has not "tried" the accused within the meaning of the Constitution. If the court is competent to hear one claim, it must be competent to hear the other.

Because I find this case squarely controlled by Powell v. McCormack, I conclude that Nixon's claim is justiciable.

C. The Merits

Resolution of the merits of Nixon's claim requires an exploration of the text of the Constitution and the history of its framing in an effort to determine what is meant by the constitutional requirement that the Senate "try" impeachments. To that end, I look first to the words used by the framers, both in the text of the Constitution and in other documents reflective of their understanding, and then to historical practice, both in America and in England. These inquiries lead me to conclude that the Senate's use of a committee to gather evidence and hear witnesses relating to the charges against Nixon did not deprive Nixon of any constitutionally protected right.

1. Theoretical Framework

It is plain enough that the framers, by assigning to the Senate the task of "try[ing] all Impeachments," intended that senators would act in a quasi-judicial capacity in convicting and removing high federal officials. By using a word used elsewhere in the Constitution to refer to judicial proceedings, the framers appeared to reveal an intention that Senate impeachment "trials" would bear some rough likeness to the sort of "trials" carried out in criminal courtrooms. In providing for criminal jury trials, for example, the framers were careful to except impeachment trials. See U.S. CONST. art. III, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of Impeachment, shall be by jury . . . ."). While this express exception suggests that the framers did not intend to require the Senate to observe all procedural incidents of criminal trials, it also suggests that the framers may have thought of an impeachment trial as a type of criminal trial. Consequently, the Constitution's use of the word "try" to describe the Senate's function in rendering impeachment judgments implies a duty to accord at least the rudimentary hallmarks of judicial fact-finding, including the receipt of evidence, the examination of witnesses, right to counsel and a chance for hearing by the accused.

The inference that the framers intended impeachment trials to be roughly akin to criminal trials is reinforced by seemingly unrefuted statements made by Alexander Hamilton during the ratification debates. In The Federalist No. 65, for example, Hamilton wrote that the Senate, in trying impeachments, would act in a "judicial character as a court." THE FEDERALIST NO. 65, at 439 (A. Hamilton) (J. Cooke ed. 1961). Hamilton described the purpose of impeachment as a "NATIONAL INQUEST into the conduct of public men" in which the ultimate aim of the trial was a "real demonstration of innocence or guilt." Id. at 440.

The framers' determination that the Senate should have the sole authority to try impeachment cases reflected their desire to harness the forces of partisanship in such matters and to elevate the influence of reason, objectivity and fairness. See id. at 440-42. As Hamilton noted, the Senate was seen to "possess the degree of credit and authority, which might, on certain occasions, be indispensable, towards reconciling the people to a decision, that should happen to clash with an accusation brought by their immediate representatives." Id. at 441. Hamilton also recognized that there were advantages to be gained in trying impeachments in a "tribunal more numerous than would consist with a reasonable attention to economy," as with a judicial tribunal. Id.

In further explaining why impeachment trials were assigned to the Senate rather than to a court, however, Hamilton wrote:

[Impeachment proceedings] can never be tied down by such strict rules, either in the delineation of the offence by the prosecutors, or in the construction of it by the Judges, as in common cases serve to limit the discretion of courts in favor of personal security.

Id. Instead, it was unavoidable, Hamilton wrote, that a court of impeachment, sitting in judgment of officials charged with essentially "political" offenses, id. at 439 (original capitalization omitted), would be left to exercise an "awful discretion" in carrying out its task, id. at 441. The Senate was best fitted to serve in this capacity, the framers reasoned, because its relative insulation from the electorate would give it the necessary independence of judgment and its paramount prestige would give that judgment the credibility and authority that might be required to command adherence from an "agitate[d]" and "divide[d]" people. See id. at 439, 441.

From all of these statements, it can be reasonably inferred that the framers intended that the Senate would approach its duty of trying impeachments with the solemnity and impartiality befitting judicial action but with greater procedural flexibility than attends ordinary criminal trials. See Gerhardt, supra note 6, at 89-91.

2. Historical Practice

From the beginning, historical practice confirmed the framers' understanding that impeachment trials would occupy a middle ground between the free-wheeling partisanship of legislative decisionmaking and the rigid procedural formalities of judicial criminal trials. From the earliest state and federal impeachments, it was agreed that "[s]trict adherence to criminal procedure would hamstring the jurisdiction of the upper house, for the senators were not jurors, and the offenses need not be crimes." P. HOFFER N. HULL, supra note 14, at 125. "At the same time, the defendant was allowed many of the protections guaranteed in a criminal trial." Id.

The question remains, despite the consensus that an "[i]mpeachment trial was to be distinguished from regular trials at law," id., whether the use of special committees to receive evidence is consistent with the framers' theoretical framework, i.e., whether the greater procedural flexibility accorded the Senate in "try[ing]" impeachments is broad enough to permit the use of evidentiary committees. American historical practice on this point arguably is weighted toward trial by the full Senate, for the Senate employed an impeachment trial committee for the first time only in 1986. But see Part II.C.2.b infra. There is precedent from England, however, supporting the use of committees, and this English practice may be read to suggest that the framers did not intend to foreclose the possibility in American constitutional practice.

a. English Practice

The constitutional framework for impeachments was modeled after the English experience of bringing impeachments in the House of Commons followed by trial before the House of Lords. See THE FEDERALIST No. 65, supra, at 440. Although it is probably an overstatement to say that "almost the entire process [of American impeachments] was lifted bodily from English practice," see R. BERGER, supra note 6, at 179 (footnote omitted), there is no doubting the significant influence that English impeachment practice had on impeachment theory and practice under the American constitution.

Although the House of Lords did not adhere strictly to any single procedure for trying impeachments in the years leading up to the American Constitutional Convention, the Lords were careful, at least as of the early 1600s, to afford the accused certain procedural safeguards, such as the right to counsel and a limited right to discovery. See P. HOFFER N. HULL, supra note 14, at 5; Williams, The Historical and Constitutional Bases for the Senate's Power To Use Masters or Committees To Receive Evidence in Impeachment Trials, 50 N.Y.U.L.REV. 512, 523-25 (1975). Over these years, "the English trial process was in a state of evolutionary flux," and "[t]he American Founding Fathers were well aware of the unsettled character of English impeachment proceedings." Williams, supra, at 523.

In English practice, most impeachment trials were conducted before the full assembly of the House of Lords, just as American impeachments were customarily tried in their entirety before the full Senate. There were, however, exceptions in which the House of Lords employed special committees to receive evidence in advance of final consideration and a vote by the full body. A review of English impeachment precedent

shows beyond doubt that the House of Lords used committees to hear evidence during impeachment trials in the early 17th Century. It is difficult to determine definitively whether this practice continued, as no direct reference to the use of committees during later impeachment trials has been discovered. It is clear, however, that, unlike other practices which were outlawed by affirmative action of the House of Lords, the use of committees to take evidence and examine witnesses has never been banned or disavowed as precedent — as were other impeachment procedures considered to have been wrongly invoked.

Id. at 531-32 (footnotes omitted). Thus, the English notion of an impeachment "trial," upon which American theory was ultimately modeled, allows for the use of special committees to gather evidence and hear witnesses in advance of final deliberations before the full body designated to decide the question.

b. American Practice

During the first 199 years of American constitutional history, there is no documented record of any use by the Senate of an evidentiary committee in an impeachment proceeding. But the uniformity of hearings before the full Senate, at a time when impeachments were rare and the Senate was smaller, does not necessarily mean that the framers intended that committees could never be used as a tool in impeachment trials. There is simply no basis in the historical record to believe that the Senate's failure to employ a committee during its early impeachment trials reflected any considered judgment that such an alternative was beyond its constitutional authority. Rather, all we know is that, for many years, the Senate apparently found it unnecessary even to consider using evidentiary committees in impeachment proceedings, and none was used; but when circumstances were perceived to be different in 1935, the Senate adopted Rule XI allowing for the use of such committees. See Williams, supra, at 540.

The origin of Rule XI confirms that its adoption was motivated by evolving circumstances in which full evidentiary hearings on the Senate floor were becoming increasingly unwieldy and, in all probability, prejudicial to the interests of the accused. The idea of establishing evidentiary committees in connection with impeachment trials was first proposed in 1904, when "Senators, aware of the growth in the Senate's size and of the accelerating development of its legislative function, beg[a]n to voice concern about the onerousness of their impeachment duties." Id. That early proposal languished in the Senate Rules Committee but was revived 30 years later after poor attendance by senators at subsequent impeachment trials proved an institutional embarrassment. See id. at 541-42.

At the 1913 trial of Circuit Judge Robert Archbald, for example, at a time when the Senate was composed of 94 members,

Judge Archbald's counsel, Alexander Simpson, was distressed to find that the trial proceedings rarely attracted the attention of more than 20 Senators and that even the composition of the group attending was constantly changing: following their normal routines, the Senators, far from behaving like judges and jurors during a trial, wandered in and out of the Senate chamber at will, often gathering only in response to a quorum call.

Id. at 541 (footnote omitted). Attendance was even smaller at the 1933 trial of District Judge Harold Louderback. Representative Hatton Sumners, one of the House impeachment managers, complained to Time magazine that "[a]t one time only three senators were present and for ten days we presented evidence to what was practically an empty chamber." Id. at 542 n. 160 (quoting TIME, Mar. 13, 1936, at 18). Concerns over the Senate's handling of these trials led directly to the adoption of Rule XI.

Given the foregoing history, I do not view the Senate's earlier experience in conducting full evidentiary proceedings on the Senate floor as revelatory of any constitutional commandment. Moreover, there is at least one express acknowledgment in early American writings that the Senate might employ evidentiary committees in trying impeachments. While he was serving as vice president of the United States and president of the Senate, Thomas Jefferson drafted what is still regarded as the most authoritative manual on the rules of the Senate. In it, he noted that the Senate's rules are in part derived from English parliamentary practice and that English practice permitted the use of evidentiary committees in conducting impeachment trials. In the House of Lords, Jefferson observed with apparent approval,

[t]he practice is to swear the witnesses in open House, and then examine them there; or a committee may be named, who shall examine them in committee, either on interrogatories agreed on in the House, or such as the committee in their discretion shall demand.

T. JEFFERSON, JEFFERSON'S MANUAL OF PARLIAMENTARY PRACTICE, reprinted in H.DOC. No. 277, 98th Cong., 2d Sess. 109, 296 (1985) (emphasis added). This suggests that, at least in Jefferson's view, no constitutional impediment existed to the Senate's use of committees in trying impeachments. As one scholar has noted, although Jefferson was not himself a member of the Constitutional Convention, "[s]ince the Manual's publication followed close on the heels of the Constitution's ratification, we may assume that its conclusions are not at odds with the intentions of the framers." Williams, supra, at 539. In any event, while Jefferson's views are not dispositive, they do give further evidence of the relevance of the English tradition.

I recognize that the occasional English use of committees in trying impeachments is not a conclusive answer to the question regarding the intentions of the Constitution's framers. There were, after all, elements of English impeachment practice — such as the imposition of criminal and even capital punishment upon conviction and the allowance for conviction by vote of a simple majority — that the framers affirmatively sought to disavow or recast in the American system. See P. HOFFER N. HULL, supra note 14, at 97; Gerhardt, supra note 6, at 16-17, 23 n. 116. Building upon a base of English precedent, the framers undeniably effected an "Americanization of impeachment — fitting it to American needs, making it republican, defining its limits, [and] experimenting with constitutional formulations." P. HOFFER N. HULL, supra note 14, at xiii. Yet, the existence of this precedent, and the absence of any affirmative rejection of it by the American framers, effectively refutes the suggestion that the use of committees in impeachment trials would have been alien or repulsive to those who designed the Constitution. As Professor Williams has concluded:

At the very least, the lack of recorded controversy over impeachment procedures — in contrast to the belabored debates over the substantive law of impeachment and its place in the American constitutional scheme — suggests that the framers did not feel any need to depart sharply from English procedural practice, even though they deviated from the English impeachment model in other respects.

Williams, supra, at 520 (footnote omitted); see also id. at 537-38, 543-44.

I conclude that the practice of using special impeachment committees to collect evidence in advance of final consideration by the full Senate can be accommodated within the parameters of the Constitution's text and the other historical indicia of the framers' intent. It cannot be said, given the history of English impeachment practice and the framers' own statements, that the framers intended to require that the receipt of evidence and the examination of witnesses in impeachment trials always take place in their entirety before the full Senate. Consequently, I would find that the Senate's limited use of an evidentiary committee in connection with Nixon's case did not deprive him of the sort of "trial" to which he was constitutionally entitled.

Nixon objects that the deliberations by the full Senate in his case, based as they were on final arguments by the parties and the committee's report on the evidence, cannot be considered a "trial" in the sense that Americans have always understood that word. This is all the more true, Nixon contends, because credibility determinations were crucial to the ultimate assessment of his guilt or innocence and yet 88 of 100 senators did not see the witnesses testify in person and thus had no opportunity to draw their own inferences about the witnesses' veracity.

If Nixon's were an ordinary criminal trial, I would readily agree. But, as already noted, history makes clear that the framers never intended impeachment trials to mirror criminal trials; nor was it ever supposed that the Senate would be transformed into an Article III court when it took up the task of trying an impeachment. By the framers' design, "impeachment hearings were not trials in which the senators were jurors, despite the fact that they sat upon oath or affirmation, so much as deliberative sessions, when they decided whether an official had betrayed his public trust." P. HOFFER N. HULL, supra note 14, at 106; accord Williams, supra, at 576-77. Thus, what the Constitution requires of the Senate in conducting impeachment trials is not rigid adherence to criminal procedure but a solemn attention to fairness guided by whatever procedures the Senate reasonably finds fitted to that end. Simply put, the fact that the framers "designed a deliberately cumbersome removal mechanism," see Edwards, supra note 14, at 767, does not mean that the Constitution must be interpreted to command the most cumbersome procedures imaginable.

The notion that senators might make credibility determinations without having scrutinized the witnesses in person is not, contrary to Nixon's assertions, alien to accepted standards of procedural fairness in this country. Administrative tribunals, for instance, are thought fit to make decisions, including judgments on credibility, based on a record compiled elsewhere by a hearing examiner and that these judgments may be upheld even though contrary to those reached by the examiner who actually heard the witnesses testify. See, e.g., Universal Camera Corp. v. NLRB, 340 U.S. 474, 494-96, 71 S.Ct. 456, 467-69, 95 L.Ed. 456 (1951) (examiner's factual findings, particularly as to witness credibility, are probative and entitled to weight, but Board may reach contrary conclusions). See generally Williams, supra, at 590-606. I do not mean, of course, to equate the Senate's role in trying an impeachment with an agency's in conducting an adjudication; the Senate's responsibility is often far more grave and the implications of its decision far more significant in the life of the nation. At the same time, the experience of these tribunals establishes that, while Nixon's notion of a "trial" is one that is recognized as the appropriate model for an Article III court, it is not the exclusive notion of a fair trial. Given that the Senate is not an Article III court, and is not expected to become one for purposes of trying impeachments, there is no reason to bind it to every procedure thought apt in a traditional judicial forum. See Gerhardt, supra note 6, at 94 (examining the Senate's use of evidentiary committees in the Nixon and Hastings impeachment trials and concluding that "[t]here is little doubt such a procedure is constitutional"); Williams, supra, at 619-20.

This conclusion seems especially clear in light of the concession by Nixon's counsel at oral argument that the Constitution does not require the attendance of all senators, or even most senators, at an impeachment "trial." The Senate could constitutionally "try" Nixon even with fewer than 12 senators present, Nixon's counsel argued, so long as it was done on the Senate floor. But the constitutional significance of the difference between that scenario and the sort of evidentiary proceeding provided Nixon eludes me. To the contrary, I believe that the procedure employed by the Senate in this case — a prolonged evidentiary hearing before a special committee followed by review, argument and deliberation by the full Senate — is far better calculated to achieve the ends intended by the framers, i.e., that the ultimate decision be grounded in evidence rather than partisan passion, that it be arrived at by a "numerous" body and that the fact-finding upon which it is based be conducted with a solemn attention to fairness such as would command the respect and adherence of a potentially divided nation.

Consequently, I would find that the Senate acted within the bounds of its constitutional authority when it convicted Nixon based partly on evidence gathered by a special impeachment trial committee.

III. CONCLUSION

For the foregoing reasons, I would find that Nixon has presented a justiciable controversy. On the merits, however, I would find that the Senate did in fact "try" Nixon within the meaning of the Constitution and that Nixon was therefore constitutionally deprived of his office. I would affirm the judgment of the District Court on these grounds.